Insights on Prescott Arizona by its former mayor Jack D. Wilson.

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My wife is a fan of mystery novels and always has several on hand from the Prescott Public Library. The title of this post is Email delusions – it could be sub-titled Magical disappearing emails. It is a non-fiction mystery involving emails that existed at one point but vanished into thin air almost magically. We have a central protagonist who would have us believe he does not know where the delete key is on the keyboard of his computer. He is supported by a cast of characters who all seemed to suffer from failing memory syndrome and could not recall emails or text messages they sent or received. All of this is juxtaposed against some hard evidence that calls into question the veracity of their stories. There was enough evidence to convince a senior federal judge that the central protagonist, Mayor Marlin Kuykendall, did not meet the requirements for qualified immunity.

A simple tale

This is a simple tale where emails that were relevant to a lawsuit were deleted after a federal court had ordered that they be preserved. However, there are many facets to this storyline that need to be traversed to fully appreciate how egos overarched Arizona State Statues not to mention an oath of office. As this mystery plays out you will learn about Arizona Revised Statutes on public records, the email system used by the City of Prescott and its own official Records Retention Policy that was blatantly violated. It is an open-ended mystery at this point as we wait for Judge James Teilborg to set a jury trial date. So let us begin our journey with some background on the City of Prescott’s email system.

City of Prescott email system

The City of Prescott provides email facilities to its employees, including the mayor and council members, via Microsoft Outlook software. Information Technology (IT) has procedures for backing up that email system every two hours in case recovery of emails is needed in case of a disaster. Nothing in that policy calls for the automatic deletion of emails by software or otherwise (for active employees). In fact, the only way an email message is deleted is if someone actually deletes it. Arizona Revised Statutes Title 39 – Public Records, Printing and Notices is rather specific about retention of public records. Emails, whether on official city equipment or on private email accounts, that deal with city business are covered under these statutes.

City of Prescott policies on Mayor & City Council member email deletions

Since City of Prescott contract attorney James Jellison stated that the mayor’s staff routinely deletes his emails[1] I wondered when that had started. It certainly was not the case when I was mayor (state statutes on public records prohibit such a practice).

So on March 1, 2014 I submitted a Public Records request to Prescott City Clerk Lynn Mulhall (see Attachment A – March 1, 2014 Public Records Request). I asked for any policies, either formal or informal, regarding the deletion of mayor and city council email by the administrative assistant that supports them. In the response to my Public Records request nothing was furnished to me in that regard, hence I have to assume nothing exists. The only thing they sent me was a copy of the City of Prescott’s Data Integrity Policy. See City of Prescott Data Integrity Policy for a PDF of what they sent me.

On February 12, 2014 Daily Courier reporter Cindy Barks stated in a story:

“A portion of the attorneys’ arguments focused on whether Kuykendall had deleted the emails. Jellison maintained that the mayor did not delete the emails, “because he doesn’t know how,” and said the mayor’s staff regularly purges emails.”

The reference to the mayor’s staff is actually Patti Crouse, Administrative Assistant to the mayor and city council. Note the conflict between what defendant’s attorney James Jellison said in court and the total lack of any City of Prescott policy, either formal or informal, regarding the deletion of the mayor’s emails by his administrative assistant. Deletion of these emails is also a violation of Arizona Revised Statutes.

Covering your tracks, almost

An excerpt from the February 18, 2014 ruling by Judge James Teilborg is revealing (citations removed for readability):

“Riley, however, presents copious evidence calling into dispute the truthfulness and credibility of these assertions. For example, although Mayor Kuykendall and Goodman claim that they never conversed with each other regarding Riley’s YHS employment status, Riley presents an October 28, 2010 email from Goodman (a YHS board member) to Mayor Kuykendall stating

[Mayor Kuykendall],

Just so you know, I had a meeting this morning with Ed Boks, Director of Yavapai Humane Society. [Riley] has now been placed on administrative leave and we will review this situation in more detail at our Board Meeting on Monday. I can assure you that this matter is of our utmost concern we sincerely regret any problems caused by her activities.

Marty [Goodman]”

This was an email received at Mayor Kuykendall’s City of Prescott official email account. Despite numerous requests from Kay Anne’s attorneys Mayor Kuykendall did not produce this email or any other emails relevant to this lawsuit. This email was retrieved from Marty Goodman’s laptop. Following the discovery of that email and several others on Mr. Goodman’s laptop the Yavapai Humane Society settled with Kay Anne Riley.

Given the above, then the statements by Mayor Marlin Kuykendall in his deposition of November 28, 2012 are cast in a different light, a perjurious light. Read them and decide for yourself:

“Q . So you — is it a fair statement that your testimony is, is that you did not regularly receive e-mail communications from Mr. Goodman?

A . I didn’t receive them, no .

Q . Did you send e-mail communications to Mr. Goodman at any time that you recall?

A. I’m not — number 1, I personally have never sent an e-mail.”

Note that in the above series of deposition questions and answers Mayor Kuykendall states he does not email. His lawyer, James Jellison, tries to portray him as technically challenged, someone who in this day and age of smart phones and tablets does not use email. Let us dig a bit deeper as the mayor has a Macintosh computer at his home with a Google Gmail account in his name. The deposition of Nathan Keegan regarding that is enlightening.

Deposition of Nathan Keegan

Nathan Keegan is the City of Prescott’s Information Technology (IT) Director. He was deposed on December 4, 2012. On August 16, 2012 Nathan Keegan and a member of the City of Prescott’s legal department went to Mayor Marlin Kuykendall’s home to conduct a search of his Mac laptop for emails relevant to the lawsuit.

Q. “Did he tell you that he used his e-mail from his home computer?”

A. “He did. He didn’t really give any – my recollection is like I say, yes, I am super duper e-mail. He is very conversational.”

Q. “What questions specifically did you ask him?”

A. “It was very general questions like, hey , could you show me how you get into e-mail because if you walk up to the computer and, for example , Apple, I wanted to see if he goes into the Web to get his mail, if he starts a program to get his mail. If it’s on a Mac, what program on the Mac does he use to get his e-mail. Just very operational things like how would you get your e-mail normally.”

Q. “Did he show you?”

A. “Yes.”

Q. “And what did he show you in that regard about how he gets on the e-mail?”

A. “He started the Apple Mail Client. It may have a different name, but that is basically what it is. It is an e-mail program that comes on an Apple computer, in this case it was linked to his gmail account. And then the Mayor went over and conversed with the attorney that was there. So I pulled out my list of search terms, search term one. Search the e-mail. Go through the list of search terms. None of the search terms produced a result. So the next thing was like, okay –”

You can’t have your cake and eat it too

On one hand we have Mayor Kuykendall protesting he does not use email. Prescott’s contract lawyer James Jellison attempts to cast Mayor Kuykendall as a technically inept bumpkin, a modern-day Luddite. During the February 11, 2014 hearing of KayAnne’s lawsuit at Sandra Day O’Connor Federal Courthouse in Phoenix each attorney was given twenty (20) minutes by Judge Teilborg to plead their side of the case. I attended that hearing. Attorney James Jellison actually tried to convince Judge Teilborg that in this day and age Mayor Kuykendall never uses email.

While on the other hand we have Mayor Kuykendall showing the Prescott Information Technology Director how to access his Apple Mac email program that links to his Google Gmail account and characterizing himself as “I am super duper e-mail.”

That is one example where it seems Mayor Kuykendall has impugned his own testimony. However, it is not the only example. Let’s take a look at the deletion of 24 emails from his Google Gmail account. It is an even more damaging example of deceptive behavior on the part of the defendant.

Deletion of 24 emails from Mayor Kuykendall’s Gmail Account

All members of Prescott’s City Council, the mayor and all council members, get a briefing from the City Clerk and the City Attorney after they take office regarding the Arizona Statutes on Public Records. They are advised that both their official city email accounts and any private email accounts are subject to these statutes. How do I know that? I was mayor and went through these briefings.

The City of Prescott has a specific policy on email retention entitled “City of Prescott Data Integrity Policy.” Here is an excerpt from the current policy:

“It is the responsibility of individual City employees and departments to maintain backup copies of documents, email, etc relative to State of Arizona guidelines and regulations.”

Now, let us look specifically at the circumstances of the missing 24 email. I have excerpted the following from Judge James Teilborg’s February 18, ruling (citations removed for readability):

“Although Riley has made multiple requests for production of emails between Defendants and YHS, and specifically between Mayor Kuykendall and Goodman, Defendants have not produced such emails. Moreover, Mayor Kuykendall explicitly denied that he and Goodman communicated by email. (“the Mayor’s position [is] that he does not use email”)).

Nonetheless, Riley discovered numerous emails relevant to this litigation where either Mayor Kuykendall or his assistant were senders or recipients of the emails. These emails were discovered from third-parties, YHS, Goodman, and Google, Inc.”

On March 1, 2011, Riley served the City of Prescott and Mayor Kuykendall with the Notice of Claim.

On May 18, 2011, Riley served a Public Records request on the City of Prescott requesting, among other things, emails between Mayor Kuykendall and YHS, Boks, or Goodman.

Mayor Kuykendall had the responsibility to locate and produce records responsive to a public records request, although the IT Department was available to assist with the process.

On August 15, 2011, Riley sent Defendants a Notice of Request to Preserve Documents and Electronically Stored Information.

On July 16, 2012, Riley discovered twenty-four emails potentially relevant to this litigation through Google, Inc’s search (pursuant to subpoena) of Mayor Kuykendall’s private email address. This discovery revealed only the “to,” “from,” and “date” fields of the email, not the subject line or body.

Riley had previously requested these emails on May 18, 2011 and May 15, 2012. Riley again requested Defendant produce these emails on July 30, 2012. Defendants did not search Mayor Kuykendall’s home computer and personal email account until August 16, Defendants produced none of the twenty-four emails from the Google list.

On or about October 30, 2012, five emails were discovered through third-party Goodman (pursuant to a subpoena). Three of these emails were from Goodman to Mayor Kuykendall and two of these emails were from Mayor Kuykendall’s assistant to Goodman. This discovery revealed the full text of all five emails. Defendants had not previously produced these emails.

On March 19, 2013, over Defendants’ objections, Riley obtained a court order directing Google, Inc. to produce copies of each of the twenty-four emails previously identified in Mayor Kuykendall’s private Gmail account. On or about March 25, 2013, Google, Inc. searched its servers but “did not identify or locate among its business records” any of the twenty-four emails. Google’s Custodian of Records produced a declaration confirming that, on July 16, 2012, the twenty-four emails existed in Mayor Kuykendall’s Gmail account, but that “[r]ecords regarding whether, when, how or by whom any emails that may have existed were deleted are not reasonably accessible to Google.”

The above information convinced Judge James Teilborg that the following rulings were justified:

“However, the Court finds adverse inference instructions to be warranted to the extent Defendants’ spoliation affects Riley’s ability to prove her claim. The Parties shall submit proposed adverse inference instructions with the other jury instructions to be filed before trial.”

“The Court has already found that Defendants acted in bad faith. Accordingly, Riley is entitled to her reasonable attorneys’ fees incurred in connection with this motion and seeking spoliated evidence.”

On April 25, 2014 a stipulation agreed to by both parties stated that KayAnne Riley will receive $35,000.00 for attorneys fees and expenses associated with spoliation (see $35,000.00 Spoliation Legal Fees Awarded to KayAnne Riley). Since that is more than the maximum amount that City of Prescott Attorney Jon Paladini can approved for payment on his own authority ($25,000.00) it will require City Council approval.

Who pays for Mayor Kuykendall’s actions?

The attorney’s fees incurred in connection with this motion and seeking spoliated evidence exceed $25,000 so they will need to be agendized for City Council approval. That will allow members of the public an opportunity to comment. Since 24 emails deleted as part of the spoliation were on Mayor Kuykendall’s private Gmail account it seems that he should be footing the bill for the %35,000.00, not the taxpayers.

The next installment

So we have now traversed the ins and outs of Prescott’s non-fiction mystery, Email delusions. As always, life is stranger than fiction. The “Big Fish” that Councilman Jim Lamerson depicts in his cartoons is facing a jury trial in the Sandra Day O’Connor Federal Courthouse in Phoenix. Mayor Marlin Kuykendall is the central protagonist. He will profess a total lack of knowledge of how emails work or where the delete key is on the keyboard of his computer. His pleas will be countered by evidence to the contrary. During the discovery part of this lawsuit his supporting cast of characters seemed claimed they could not recall emails they sent or received. That may well change during an actual trial when they face perjury charges for not telling the truth. It will be akin to a game of dominos, as one falls many will follow. So we may observe the specter of rats fleeing a sinking ship as many decide that throwing themselves under the bus and committing perjury is not in their best interests. I expect to see many telling the truth so they can play another day.

Related Blog Posts

If you enjoyed this blog post you may also enjoy this related blog posts. They are listed in chronological order, oldest to newest — this saga has been going on for quite some time, since 2010:

Attachment A – March 1, 2014 Public Records Request

March 1, 2012 Lynn Mulhall Prescott City Clerk City of Prescott Via email

Public Records Request

I am requesting the following public records:

Copies of any policies and/or procedures for the retention and/or destruction of emails from members of the Prescott City Council. This is to include official policies adopted by the City Council or specified by the City Manager and any informal policies or procedures (such as those followed by Patti Crouse or the Information Technology department). Period covered by this request: October 2010 through February 2014.

If this information is available in electronic format, please email it to me at (Email address redacted).

A stipulation was entered on April 25, 2014 in the Kay Anne Riley versus the City of Prescott and Mayor Kuykendall lawsuit awarding KayAnne Riley $35,000.00 for legal fees in connection with the spoliation of evidence. See: Award of Spoliation Legal Fees April 25 2014.

This was the result of emails being deleted on Mayor Kuykendall’s Gmail account after a court order to preserve the was in place. For background on the deleted emails, see Email Delusions.

This is above the $25,000.00 that can be approved by the City attorney which means this will need to be approved by the city council. That means the public will finally have a chance to ask why we are paying for Kuykendall’s folly. Once this is scheduled get there early for your seat, it will be a packed room.

I have had a request to post documents from the Public Access to Court Electronic Records (PACER) website (http://www.pacer.gov/) for the 3:11-cv-08123-JAT Riley v. Prescott, City of et al case where Senior Federal Judge James A Teilborg is presiding.

A plethora of documents

PACER screen

As I write this blog post there are a total of three hundred and twenty-one (321) documents available on PACER for this case. Court documents such as these tend to be rather dry and some would consider them as an effective sleep aid for those suffering from insomnia. However, there are some documents of greater interest than others. Let us begin with Senior Federal Judge James A. Teilborg’s ruling of February 18, 2014 (this is in PDF format so you will need Adobe Reader to read it):

This is quite interesting reading. The learned judge uses some very choice tinctured rhetoric to make his points. The most devastating part of the order is that the judge found that Mayor Marlin Kuykendall was not eligible for qualified immunity. Ouch! That means he was not conducting official duties as mayor and is not protected by qualified immunity from lawsuits based on his actions.

Hired gun tries to delay trial

James Jellison is the outside counsel hired by the City of Prescott to defend the mayor. He charges over $200.00 and hour for his services. His bills for this lawsuit are nearing $150,000.00. I am not a lawyer; however, my reading of his briefs for the court have not impressed me. He seems to just throw irrelevant case law citations against the wall and hope that opposing counsel and the judge will not catch that. Well, let us look at his documents and you can make your own mind up on his legal veracity. The three documents are in response to the February 18, 2014 ruling by Judge Teilborg. They are a Motion of Appeal, a Motion to Stay and a Proposed Order to Stay:

Desperation by Attorney Jellison

Then on March 5, 2014 defendant’s attorney James Jellison filed a Motion for Reconsideration. Double ouch! In My Humble Opinion (IMHO) a good way to really aggravate a Senior Federal Judge is to ask that judge to reconsider an issue where he cited “copious evidence” that supported his initial ruling!

Now it is up to Senior Federal Judge James A. Teilborg to ensure justice is served. I hope he rules expeditiously and Kay Anne Riley gets her day in court. Prosed jury trial dates are in August and early September.

Enough of the Deny, Deny, Deny and Delay, Delay, Delay tactics of attorney for the Defendant Mayor Marlin Kuykendall. On March 5, 2014 attorney James Jellison filed a Motion to Stay, in effect another delaying tactic as far as I could determine. It is time to put the brakes on James Jellison and his attempts to delay a jury trial ad infinitum, ad nauseam. It is time to let Kay Anne Riley have her day in court. On March 14, 2014 Kay Anne Riley’s attorneys responded to the March 5, 2014 City of Prescott Motion to Stay.

“Plaintiff requests that the Court deny City of Prescott Defendants’ Motion to Stay. The court of appeals lacks jurisdiction to hear the interlocutory appeal in its present posture. Alternatively, Plaintiff requests that this Court find that Defendants’ appeal is frivolous and that the ability to raise the issue of qualified immunity by interlocutory appeal has been waived. Plaintiff further requests that the Court deny Defendants’ motion to stay because it is not supported by facts or law and is interposed for purposes of delaying a trial on the merits.”

Power shredding the arguments of James Jellison

After the opening statement in their motion, Kay Anne Riley’s lawyers Daniel Bonnett and Daniel Pochoda proceeded to systematically disembowel each and every argument put forward by the defendant’s counsel James Jellison. Bonnett and Pochoda effectively attack Jellison’s “let’s throw something against the wall and see what sticks” approach by examining each argument on its merits and pointing out to Judge James Teilborg why the argument does not apply in the circumstances of this case. Now, let’s take a closer look at a couple examples of that.

Mayor Kuykendall is not entitled to qualified immunity

“As the Court will recall, Defendant Marlin Kuykendall joined in an earlier motion to dismiss filed by the City of Prescott Defendants alleging, inter alia, that he is entitled to qualified immunity on Plaintiff’s First Amendment claims (Count I). (Doc. 6 at 9). The Court rejected this argument in an order dated February 16, 2012. (Doc. 38 at 7-8).

Rather than seek an interlocutory appeal at that time, Defendants engaged in substantial oral and written discovery including multiple depositions.[1] At no time during the 24 months of combined discovery and dispositive motion practice after the motion to dismiss on qualified immunity grounds was denied did Defendants Kuykendall once move for a stay of this action or seek leave to pursue an interlocutory appeal on the qualified immunity issue until the current, belated motion. Defendants once again raised the qualified immunity issue in their motion for summary judgment, over a year after it was first rejected by this Court at the pleading stage. (Doc. 266 at 9). Applying Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir. 2011), a case cited by allparties in their summary judgment submissions, the Court once again found that Defendants Kuykendall was not entitled to qualified immunity and directed that the parties confer and submit proposed dates to the Court for a jury trial on the merits.”

What is qualified immunity?

Qualified immunity is protection from lawsuits elected officials enjoy when they are doing their officials duties. When an elected official uses the power of their office for non-official purposes, for example, to cause someone to lose their job as an act of retaliation, that action is not entitled to the protection of qualified immunity.

What the loss of qualified immunity implies

Mayor Marlin Kuykendall is being sued both in his official role as Mayor of the City of Prescott and personally. Without qualified immunity to protect his actions both the City of Prescott and Marlin Kuykendall could be liable for any damages assessed by the court. If Kay Anne Riley prevails at the upcoming jury trial the court could assess substantial damages and legal fees.

Kuykendall attended many depositions

Footnote 1 states, in part, “…Defendant Kuykendall deposed without objection, he personally attended no less than 12 depositions…” During the discovery portion of a legal proceeding depositions are taken. These normally involve lawyers, the person being deposed and a certified court reporter. Mayor Marlin Kuykendall sat in on many of these depositions which is legal but very unusual. What did he intend to accomplish by attending these depositions? Only he knows for sure. However we can speculate. Maybe he thought his physical presence during a deposition would be intimidating. Maybe he was considering a career change and wanted to learn how the deposition process worked. I will leave it up to the reader to draw your own conclusion.

Deny and Delay

As KayAnne lawyers stated:

“These events represent an ongoing pattern of numerous attempts on the part of Defendants to delay and frustrate Plaintiff’s effort to have her day in court. Plaintiff respectfully requests that the Court put an end to Defendants’ delay tactics and proceed with scheduling and conducting a jury trial on the merits.”

No Legal or Factual Basis Exits to Stay These Proceedings

Kay Anne’s lawyer argued that the request for a stay was frivolous:

“Defendants rely on Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992), and Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), to support their request for to stay. Chuman cites Apostol. In Chuman, the Ninth Circuit stated, however, that a district court does not lose jurisdiction to proceed with a trial on the merits if the interlocutory appeal on qualified immunity has been waived or is frivolous.”

Then KayAnne’s lawyer included this as part of one case law citation on their motion:

“We have no doubt, however, that defendants who play games with the district court’s schedule forfeit their entitlement to a pre-trial appeal. A district court may certify that a defendant has surrendered the entitlement to a pre-trial appeal and proceed with trial.”

A jury of her peers

Hopefully we will soon see rulings from both the Ninth Circuit Court and Senior Federal Judge James Teilborg on these issues. It really is time for this law suit to proceed to a jury trial where a jury of her peers will decide if Kay Anne or Mayor Kuykendall is telling the truth.

[1] “Not only was Defendant Kuykendall deposed without objection, he personally attended no less than 12 depositions as well as oral argument on the motion to dismiss. The Court is obviously aware of the volume of discovery and pretrial proceedings in this matter, given the several discovery disputes brought to the attention of the Court as well as the extensive materials submitted in support and opposition of the cross-motions for summary judgment. In addition, the Clerk’s docket in this matter contains entries in excess of 300 in number and further demonstrates Defendants Kuykendalls’ participation in this litigation without once requesting a stay prior to their present motion.”

As the Kay Anne Riley versus Mayor Marlin Kuykendall lawsuit drags on the legal fees paid by the City of Prescott continue to accumulate unabated.

The city’s legal fees for their hired-gun contract attorney James Jellison are running about $10,000.00 a month. They totaled $172,113 as of March 10 and that does not include the legal fees the City of Prescott is on the hook for because Judge James Teilborg ruled that Kay Anne Riley could collect the legal fees associated with the spoliation of emails on the mayor’s personal laptop (24 emails disappeared from his laptop after being identified by Google under court order) and on his city email account. Those fees are to be agreed to by April 11 (per court order). I expect those fees will exceed $25,000.00 which is the limit the city attorney can approve. The city council must approve them. We will finally get a chance to ask each and every one of the council members why are we are paying for the mayor’s folly? Of course, Mayor Marlin Kuykendall must recuse himself during that agenda item.

On February 18, 2014 Senior United States District Judge James A. Teilborg issued a series of rulings in the Kay Anne Riley versus the City of Prescott, Marlin Kuykendall (as mayor and individually) case. Among other findings the Court found that Mayor Kuykendall did not qualify for “qualified immunity” and that he had “willfully” destroyed evidence by deleting emails relevant to the lawsuit. See KayAnne Riley versus Prescott Mayor Kuykendall–Update for details.

Legal Fees to Defend Mayor Kuykendall and Cost of Settlement

According to the City Code the City is supposed to refuse to provide for the defense and indemnification of Mr. Kuykendall if:

(a) the act or omission did not occur within the scope of the duty authorized or imposed by law

(b) the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the officer or employee requesting defense and indemnification or

(c) the defense of the action or proceeding by the City would create a conflict of interest between the City and the officer or employee involved.

That determination is supposed to be made by City Attorney Jon Paladini. Mr. Paladini now has a significant ethical dilemma. Maybe it is time to call all the City Council members and demand our taxpayer dollars not be spent on the defense of Mayor Kuykendall. The City of Prescott has already spent $150,000+ on this defense and the meter is still running.

1. Except as hereinafter provided, the City shall, upon the request of any present or former officer or employee of the City, provide for the defense of and indemnify the officer or employee in a civil action if the officer or employee:

(a) acted or failed to act in a manner in which the City has or had an interest; or

(b) acted or failed to act in the discharge of a duty imposed or authorized by law.

2. The City shall refuse to provide for the defense of and indemnification of any civil action referred to in (A)1 herein, or any other civil action, if the City Attorney finds that:

(a) the act or omission did not occur within the scope of the duty authorized or imposed by law;

(b) the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the officer or employee requesting defense and indemnification; or

(c) the defense of the action or proceeding by the City would create a conflict of interest between the City and the officer or employee involved.

3. In any proceedings other than those described in subsections (A)1 and (A)2 of this Section, including criminal proceedings, the City may provide for the defense of a present or former officer or employee, if the City Attorney concludes that such representation is in the best interests of the City.

4. For the purposes of this Section, the City’s authority to defend and indemnify present or former City officers or employees shall extend to a cross claim or counterclaim against such officer, agent or employee.

5. For the purposes of this Section, the City’s obligations to officers and employees and the duties of officers or employees shall extend to and include City volunteers whose volunteer service to the City has been approved by an authorized City official. (Ord. 3477, eff. 3-14-1996; amd. Ord. 3855, 3-9-1999)

(B) Officer, Employee Duties:

1. In the event of an occurrence which the officer or employee calculates may result in personal liability of such officer or employee, the officer or employee shall promptly notify the Risk Manager and his/her direct supervisor of the occurrence, in writing, describing the occurrence in detail, including:

(a) Time, place and circumstances of the occurrence; and

(b) Names, telephone numbers and addresses of the injured person or persons, and of available witnesses.

2. If a claim or suit is brought against the officer or employee, the officer or employee shall promptly forward to the City Attorney every demand, complaint, summons or other process received by him or her, or by his or her representative. (Ord. 3477, eff. 3-14-1996)

3. The officer or employee shall cooperate with the City and, upon the City’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or entity who may be liable to the City. The officer or employee shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The officer or employee shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than first aid to others at the time of occurrence.

4. In the event the conditions contained in this Section are not complied with by the officer or employee, the City may elect to decline representation and/or indemnification of the officer or employee. (Ord. 2279, 6-25-1991)

(C) Control Of Litigation: Whenever the City provides for the defense of an action set forth in this Section, as a condition of such defense, the City may assume exclusive control over the representation of such person defended and such person shall cooperate fully with the City; provided, however, that any person may at any time and at such person’s option take control over representation by waiving all rights to payment for costs of defense.

(D) Attorney Of Record: The City may provide for the defense pursuant to this Chapter.

(E) Subrogation: In the event of any payment under this Section, the City shall be subrogated to all of the officer’s or employee’s rights of recovery against any person or entity and the officer or employee shall execute and deliver documents and do whatever else is necessary such that the City’s right to subrogation is secure. The officer or employee shall do nothing to prejudice the City’s rights to subrogation. (Ord. 1811, 8-26-1986)

The City of Prescott’s lawyers had asked for the judge to issue a Summary Judgment dismissing Kay Anne’s law suit because there were no facts to support her assertions of Mayor Kuykendall being involved in her firing. The judge was not buying that argument and in dismissing the Summary Judgment request from the city he said:

“Riley, however, presents copious evidence calling into dispute the truthfulness and credibility of these assertions.“

It actually get a lot worst for the City of Prescott and Mayor Kuykendall as the ruling goes on. The judge found that Mayor Kuykendall had “willfully” destroyed emails relevant to the lawsuit a year after the court told him to preserve them! The judge then awarded reasonable attorney fees to Kay Ann Riley based on this destruction of evidence (called spoliation in legal language). Furthermore, the jury instructions will instruct the jury to consider the willful destruction of these emails in an adverse manner. Bottom line – looks like the City of Prescott and Mayor Kuykendall better prepare to open their checkbooks.

Synopsis of key points of ruling

The ruling issued by the judge is 38 pages in length, here is a link to a PDF file containing the entire document:.Summary Judgement Ruling 2 18 2014. If you prefer to see the key points of this ruling they are listed below,

Summary

“Riley can maintain allegation that she is entitled to relief because she was terminated from YHS in retaliation for exercising her 1st Amendment Rights.”

“Defendants may have taken unconstitutional Actions:
a) Riley’s Speech was a Matter of Public Concern.
b) Riley’s Speech was not Part of her Official Duties at YHS.
c) Riley’s Speech May Have Been a Substantial Motivating Factor in Her Termination.
d) Defendants Failed to Give an Adequate Justification for Treating Riley Differently that Other Members of the Public.
e) Defendants Failed to Show That Riley Would Have Been terminated Even Absent Other Actions.”

“Riley Can Maintain 1983 Claim Against the City of Prescott and Mayor Kuykendall in His Official Capacity.”
“Mayor Kuykendall, in his Personal Capacity, is Not Entitled to Qualified Immunity.”

“The Court finds that Riley has presented sufficient evidence to establish a genuine dispute of material fact that her speech was constitutionally protected and that Defendants violated her 1st Amendment rights, ie, “…the government may not threaten to exert economic pressure on a private employer in order to produce a result which it could not command directly.””>/blockquote>

Tortious Interference with Employment Relationship

“Tort liability may be imposed upon a defendant who intentionally and improperly interferes with the Plaintiff’s right under a contract with another if the interference causes the plaintiff to lose a right under that contract.”

At deposition, Mayor Kuykendall, other Councilmembers, and various YHS board members testified the Defendants were not involved in the termination of Riley’s employment by YHS. Riley presents abundant evidence challenging the credibility of the defendants testimony. Riley’s is entitled to an adverse interference jury instruction, not the factual finding she seeks.

III Cross Motion for Discovery Sanctions

a. Riley argues she is entitled to claim dispositive sanctions due to Mayor Kuykendall’ alleged spoliation of various email evidence.

Riley argues that … Mayor Kuykendall has destroyed or failed to preserve email evidence relevant to this litigation.

Riley made multiple requests for production of emails between Kuykendall and Goodman. Kuykendall implicitly denied communications by email. “He does not use email>”

Nonetheless, Riley discovered numerous emails relevant to this litigation where Kuykendall or his assistant were senders or recipients of the emails.

These emails were discovered through third parties.

Riley served the City of Prescott and Mayor Kuykendall with the Notice of claim on 3/1/2011.

Riley served a Public Records request on City of Prescott on 5/18/2011, requesting emails between the Mayor and YHS, Ed Bok and Marty Goodman.

Mayor Kuykendall had the responsibility to locate and produce records responsive to a public records request, although the IT Department was available to assist.

On 8/15/2011, Riley sent a request to Preserve Documents and Electronically Stored Information.

Riley had previously requested these emails on 5/18/2011 and 5/15/2012. Defendants did not search Kuykendall’s home computer until 8/16/2012.

None of the 24 emails were produced.

On or about 10/30/2012, 5 emails were discovered on Goodman’s computer (pursuant to subpoena). 3 were from Goodman to Kuykendall and 2 were from Kuykendall’s assistant to Goodman. This discovery revealed the full text of all 5 emails.

Google’s Custodian of Records (pursuant to Court Order) produced a declaration confirming that as of 7/16/2012 all of the 24 emails existed in |Kuykendall’s Gmail account, but Google could not verify when or by whom any emails were deleted.

Google objected to the possibility that an employee of Google may have taken some action … that resulted in the deletion of emails from the Mayor’s Google maintained email account.

Defendants deny destroying evidence relevant to this case during the period when Defendants were obligated to preserve evidence.

Defendants allege Mayor Kuykendall is neither proficient nor a regular user of email. Kuykendall argues that, due to City of Prescott IT limitations, his city emails are not archived and his assistant regularly deletes emails after approx. 2 weeks and user-deleted email is only stored for 30 days.

Kuykendall argues that any relevant emails would have been deleted routinely prior to Notice of Claim on 3/1/2011. As to his private Gmail account, Kuykendall claims it is his wife who uses that account to correspond with his assistant and campaign manager. He further claims that he “has insufficient technical knowledge to delete emails from his personal account and he is not aware of anyone taking affirmative steps to delete emails from his Gmail account. He suggest a “technical glitch” or a Google employee could be responsible.
Defendants argue that their actions warrant no sanctions of any kind.

2. Legal Standard

Destruction of evidence or the failure to preserve properly for another’s use as evidence in pending litigation constitutes Spoliation. Failure to “preserve electronic or other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences.”

3. Analysisa. Obligation to preserve

At the very latest, Kuykendall’s duty to preserve the contents of his city-assigned email account and private email account arose when he received Riley’s Notice of Claim on 3/1/2011. Riley argues that Defendants obligation to preserve evidence in both accounts arose earlier.

1. Mayor Kuykendall and City Employee’s City-assigned Email Account

Riley argues that Defendants had a preexisting duty to preserve relevant emails because they are public officers subject to state public records laws and regulations. Arizona Public records laws also obligate defendants to preserve all emails relating to municipal contracts such as that between the City and YHS and, by extension, Riley.

The Court notes that Defendants ignore this argument. Consequently, the Court will consider Defendant to admit that under Arizona Public Records laws, Defendant became obligated to preserve emails between city employees and YHS at some point prior to 10/26/2010, the date Riley first publicized the project.

2. Mayor Kuykendall’s Private Gmail Account

It appears that Kuykendall’s private Gmail account contained email relevant to this litigation on March 1, 2011, 24 emails appear to have been deleted no earlier than mid-May, 2012, more than one year after Kuykendall knew of his obligation to preserve evidence.

Riley has made a showing that at least some of the spoliation occurred after Defendants duty to preserve had arisen.

b. Culpable State of Mind

An allegedly spoliating party’s culpability must be determined case by case.

1. Mayor Kuykendall and City Employee’s City Assigned Email Addresses

Defendants have not attempted to explain why the “normal city practices: exercised here fail to follow Arizona public records requirements.
Such non-compliance with Arizona state law and misclassification of emails is, at best, grossly negligent and, at worst, willful. Accordingly the Court finds that the totality of the facts presented show that Defendants deleted emails related to this lawsuit, and did so with sufficient culpability to warrant sanctions.

2. Mayor Kuykendall’s Private Gmail Account

Defendant’s explanations for their failure to preserve evidence are not reasonable. It is evident that emails related to this lawsuit remained in Kuykendall’s Gmail account over one year after Kuykendall received Riley’s Notice of Claim.

After a subpoena to Google revealed that emails existed Kuykendall continued to refuse production and the emails were deleted.

Since Kuykendall refused to produce the emails during the year post-Notice of Claim that the emails indisputably existed, the Court find that Mayor Kuykendall acted willfully and in bad faith, and, thus, with a culpable state of mind.

C. Relevance to Claims

Riley discovered multiple emails in Goodman’s email account that were sent to Kuykendall or his assistant. These emails indicate that Kuykendall was discussing Riley and YHS with Goodman, both before and after the protest.

From Google, Riley discovered 9 emails indicating Kuykendall was corresponding with his assistant, Goodman and Edelbrock during the critical period of Oct. 26-29, 2010.

Defendants produced none of these emails.

The Court finds that Defendants destroyed emails relevant to this case.

d. Appropriate Sanctions

The Court finds adverse inference instructions to be warranted to the extent Defendants’ spoliation affects Riley’s ability to prove her claim. The Parties shall submit proposed adverse influence instructions with the other jury instructions to be filed before trial.

4. Attorneys’ Fees

The Court has already found that Defendants acted in bad faith. Accordingly, Riley is entitled to her reasonable attorneys’ fees incurred in connection with this motion and seeking spoliation evidence..

B. Defendants’ Motion

Defendants allege that Riley deleted numerous emails that may have been relevant to this litigation and even closed an email account. Defendants cannot be entitled to sanctions because Defendants have made no attempt to show what, if any, evidence possibly may be lost that may be relevant to Riley’s claims or Defendants’ defenses.

The Court denies Defendants’ Cross Motion for Discovery Sanctions.

IV Cross Motion to Strike

Both parties have cross-motions to strike various portions of the several statements of fact submitted to support their motions for summary judgment and cross-motions for discovery sanctions.

The Court has not relied on either Parties’ objected to statements of facts when reaching it decisions.

Both Parties base their cross-motions to strike on the fear that the Court will ne unduly swayed by the opposing party’s legal arguments.

The Court reminds both parties that the Court is fully capable of delineating between factual statements supported by the record and arguments. The Court has not misconstrued any legal arguments contained in the multiple statements of fact as factual evidence.

We have a runoff for the final Prescott City Council seat. Voters need to look closely at the motivations, backgrounds and qualifications for office of the two contenders: Ellie Laumark and Greg Lazzell.

Background

I have tried to dig through all the public information on these two candidates. Some of this comes from answers submitted directly by the candidates (in Prescott Chamber of Commerce Voters Guide), some from candidate forum appearance and some from the Internet (candidate websites and comments posted on Facebook). Since I have experience as a political candidate I know that a candidate tries to control “the message” and to always present themselves in a favorable light. The real challenge in looking for motivations of the candidates is getting behind the public persona or veneer they attempt to present and to find out what really makes them tick.

So let’s take a look at these two candidates and see if that can be done. The following two candidate synopses were extracted from the 2013 Prescott Chamber of Commerce Voter’s Guide.

Greg Lazzell

Ellie Laumark

Education:

Majored in Criminal Justice. Currently working towards a Bachelors in Project Management

Elected offices held:

Precinct Committeeman

Business: Assist Manager for

Home Depot (7 years),

Construction Foreman Paraja Builders (3 years),

Prescott College (7 years),

Owner/Operator Lazzell Construction (2 years)

Education:

Masters: University of MN – Winona, Educational Psychology and Counseling

Bachelor of Science: Colby Sawyer College

Business: Business Owner 17 years in the hospitality area

30 years MN Dept. of Health,

Manager Division of Health Care Quality

Program Director:

Western Wisconsin Tech Institute

associate degree program for

Medical Record Technicians

Ast Director, York College School

for Health Information Management

Critical Evaluation

Education: Ellie Laumark has a Master’s degree while Greg Lazzell lacks a degree (he took some criminal justices classes at a junior college).

Elected Offices Held: Greg Lazzell is a precinct committeeman while Ellie has no political experience.

Business: Ellie Laumark worked for 35 years in the health care industry and has also been a business owner for 17 years. Greg Lazzell worked at the Home Depot for seven years, was a construction foreman for two years and is currently the Facilities Manager at Prescott College. He also has had his own construction company for 2 years.

Position on Issues

An informed voter needs to understand each candidate’s positions on issues critical to them. Shown below are excerpts from the Prescott Chamber of Commerce 2013 Voters’ Guide (I have cut the excerpts directly from the guide – the grammatical errors were preserved as is). The notes are my observations. You can view the entire guide here.

Issue

Greg Lazzell Position

Ellie Laumark Position

Open Space

“I would priorities (sic) roads first.”

Note: This supports the current council position of ignoring the will of the voters.

“We need to complete the circle trail and secure some of the critical habitat i.e. The Granite Dells Resort area to improve the recreational activities here before these green spaces vanish. The Granite Dells 83 acres could complete the Lake-to-Lake area could be what the Red Rocks area is to Sedona and a provide a new venue for tourist activities.”

Regional EconomicDevelopment

“No, I don’t believe in a regional economical (sic) approach, although we need to always have regional discussions and agreements.”

“I strongly support Prescott’s being a partner in the regional economic development program.”

Higher Education

“The Higher Education Institutions in our community have a huge positive economic impact to our city. We as a City, should be there to assist them when asked for help, whether through, promoting them, zoning adjustment, etc.”

“I propose that the Mayor and Council meet with area schools to assess their needs and determine how the city can be a partner with the schools and lobby our state legislators to support education. I will support putting a school bonding and tax over-ride on the ballot for voters to provide for capital improvements, current text books and technology for our students.”

Antelope Hills Golf Course

“Put the operation out for a straight forward RFP.”

“Antelope Hills has been part of Prescott for over 55 years and is an important recreational asset that needs to be preserved. I think the “hybrid” arrangement the city is looking at of a combining a private business management with public maintenance responsibility has potential, as long as there is some profit sharing on the business end when there are profits.”

On Thursday, July 25 the Yavapai County Contractors Association (YCCA) had a candidate forum. It was held at the Hassayampa Inn Marina Room, 122 E. Gurley St.

Issue

Greg Lazzell Position

Comments

Public Transit

In response to a statement by Jean Wilcox “There is federal money available” Greg Lazzell stated “To get in bed with the federal government is insane.”

Jen Wilcox responded “We are already in bed with the federal government.”

Jean Wilcox had ground-floor experience with the successful public transit system in Flagstaff.

Gary Ian Worob commented on Greg position: “I have volunteered for years to help move Prescott forward. I hope that the newly elected representatives get that concept and are not intimidated by planning for the future and requesting our tax dollars come back into our community to do that.Greg Lazzell I doubt you will get my vote. Your wisdom sounds unwise to me but then I only spent an entire life’s career moving community forward so what do I know?”

Financial Backers

A good indicator of the allegiances of a candidate can be gained by looking at their contributors (follow the money). Campaign Financial Disclosure statements are a matter of public record and are published on the City of Prescott website.

Greg Lazzell Contributors

Contributor

Amount

Occupation

Mike Fann

$300.00

Owner, Fann Contracting

Albert and Betty Bowers

$250.00

Retired

Jim Lamerson

$200.00

Jeweler

Ken Mabarak

$200.00

None stated

Jude Bevenour

$200.00

Retired

Richard & Paula Mathias

$150.00

Retired

Karen Fann

$100.00

State Legislature

John & Nettie Lamerson

$100.00

Retired

Donald Grier

$100.00

Lawyer

Kathy Calvert

$ 75.00

Retired

Total above

$1,675.00

Ellie Laumark Contributors – Individuals

Contributor

Amount

Occupation

Bonnie and Ed Norvaisis

$250.00

Retired

Carl E Brown

$100.00

Trust

Contributions, $50 or less

$335.00

Total above

$685.00

Political Committees

Contributor

Amount

Prescott Good Governance

$ 85.67

Realtors of AZ PAC

$2,270.00

Total above

$2,355.67

Republican Women of Prescott

The Republican Women of Prescott posted a message on their Facebook page on August 28 that contains this:

“Now we all need to help Greg Lazzell win in the run-off against Democrat Ellie Laumark for a seat on the City Council. The run-off election will be held November 5th. Let’s get behind Greg and do what we can to help him win that seat!”

Arizona State Statutes proscribes that all municipal elections are non-partisan elections; however, these women do not feel that way. They are not focused on the issues; they are only focused on party affiliation.

Greg Lazzell posted this on his Facebook page:

“September 3 via mobile

I am really excited about the next two months! I look forward to meeting folks I have yet to meet.Plus Two wonderful people have stepped up to help me through the next leg of the race.Susan Cohan (sic) and Nettie Lamerson, Thank You.”

Nettie Lamerson is the treasurer of Republican Women of Prescott and Susan Cohen is a committee chair.

Conclusion

Photo courtesy of stock.xchng

Since Greg Lazzell works at Prescott College, that offered perfect camouflage to make him appear as an outsider and “new blood” for the Prescott City Council. However, a little background research reveals Greg is aligned and supported by some of the leading Good-Ole-Boys in Prescott. It sounds to me like local political kingmaker Jim Lamerson has selected Greg as his pawn. He wants to maintain Good-Ole-Boy control of the city council. Sorry, Jim, but I think the Prescott voters will see through your ploy and vote for the far better qualified and INDEPENDENT candidate Ellie Laumark. Want to learn more about Ellie Laumark? Visit her website: EllieLaumark4Prescott.org.

Prescott voters have a chance to bring a new face to the Prescott City Council, someone that will not “go along to get along.” Do not be fooled by the under qualified pawn, but instead vote for a voice of reason and positive change, Ellie Laumark. Bring back openness to the Prescott City Council and an appreciation for the value of public discourse and input to their deliberations.

_________________

Jack D. Wilson served as Prescott mayor from November 2007 – November 2009. During his term more Open Space funds were expended than in all previous years. In 2008 he personally initiated the negotiations with John Sullivan of the Salt River Project (SRP) and Herb Guenther, Director of the Arizona Department of Water Resources that resulted in an agreement between the City of Prescott and SRP.

Background of recovery firms operating in Prescott

I covered a listing of the recovery homes in Prescott in part 1. However, that is just part of the total story. Let’s now delve into a couple of other aspects to round out the picture of the addiction recovery industry in Prescott. This article focused on the firms that provide addiction recovery services.

To provide some perspective on those firms I first I divide them into state-licensed facilities and unlicensed group homes (as state licensing implies some level of regulation and inspections). Then I segment them into for-profit, non-profit and government facilities.

I received some interesting comments from people based on publication of part 1. The general public sees what is happening in their neighborhood and some have an inside view of the Prescott addiction recovery business. I welcome your comments and observations. Did I miss something that needs to be covered? Did I get something wrong? Let me know.

Licensed versus unlicensed recovery facilities

The recovery industry in Prescott can be segmented into the following categories:

State licensed Behavioral Health Facilities

These are licensed, regulated and inspected by the Arizona Department of Health Services (ADHS). Currently, there are 27 Behavioral Health Facilities listed on the ADHS website (see Appendix A – State Licensed Behavioral Health Facilities). ADHS inspections seek to ensure these facilities are complying with state regulations. An on-site compliance inspection can result in citations for deficiencies which can then result in compliance action which may include monetary fines. Most of these facilities are classified as “OUTPATIENT CLINIC.” However, a few have other classifications (the lower the level number the more medical care/supervision required):

LEVEL 4 TRANSITIONAL AGENCY

THE MONTANA SOCIETY, INCORPORATED ( ARROWHEAD LODGE)

LEVEL 3 BEHAVIORAL HEALTH RESIDENTIAL

DECISION POINT CENTER, INC, 615 / 621 / 623 / 625 CAMPBELL STREET

PRESCOTT HOUSE, INC, 210 / 212 / 214 NORTH ARIZONA

LEVEL 2 RESIDENTIAL / OUTPATIENT CLINIC

WEST YAVAPAI GUIDANCE CLINIC, 642 DAMERON

LEVEL 2 RESIDENTIAL

WEST YAVAPAI GUIDANCE CLINIC – HADDON HOUSE, 711 HILLSIDE AVENUE

LEVEL 1 SUB-ACUTE

GALLUS DETOX ARIZONA, 134 SOUTH GRANITE STREET

PRESCOTT DETOX CENTER, L L C (Carleton), 831 GAIL GARDNER WAY

Group homes (also known as half-way houses, sober living homes, etc.).

These are currently not regulated by the Arizona Department of Health Services. Until recently (September 19. 2013) the City of Prescott had no regulations for these either.

The total absence of regulations on group homes and the growth of the recovery industry in Prescott created the perfect circumstances for problems. As I have published articles in this series on my Prescott Insights blog and posted them on Facebook I have received many comments. Here is one that pertains to this situation from a woman that wants to remain anonymous:

“I wish to remain anonymous. I am an active member of AA in Prescott. I agree 100% that there needs to be more regulation. I see people getting sober and then low and behold a year later they are opening their own “recovery home”. There is little or no supervision. Their “house managers” are barely a year sober and they are supervising a house full of addicts and alcoholics. There is relapsing issues…. their clients bring in drugs into our neighborhoods and I never hear of anyone getting arrested?? They often break the maximum occupancy rules.”

Those comments are unsettling but they ring true. They add to the argument that the State of Arizona’s Arizona Department of Health Services needs to be involved in licensing, regulating and inspecting group homes.

What does rehab cost?

“An Intervention for Malibu” was published on September 15, 2013 in the New York Times. It delves into the problems the toney enclave of Malibu, California is having with rehabilitation centers for drug and alcohol addiction. Malibu is above 1/3 the size of Prescott. It has a population of 12,645. But it has 35 rehabilitation facilities licensed by the state of California. In comparison Prescott has 27. You may have seen the television commercials for Passages Malibu. The Times article states the Passages “Treatment starts at $64,000 a month.” The New York Times article also states “While 85 percent of drug and alcohol treatment programs in the United States are nonprofit ventures, the luxury facilities in Malibu are commercial operations.” That is interesting as it mirrors the situation in Prescott. Another quote from the New York Times article “Question: What are Malibu’s only growth industries? Answer: Winemaking and sobriety.” That could be restated for Prescott as: Question: What are Prescott’s only growth industries? Answer: Tourism, especially sobriety tourism.

The prices for rehab in Prescott are not as high as in Malibu but it is not cheap. This is from Part 1:

Chapter 5: Sober living: $600 per month (Note: this seems VERY low compared to the other numbers here. I do not believe this includes any clinical services and may be an apple to oranges price.)

First Step Recovery: $3,600 per month

I do not have prices for all the for profit rehabilitation organizations, most notably Carleton Recovery Centers – First Step Drug and Alcohol Rehab which is the second largest rehabilitation organization in Prescott. My working assumption is that their prices are comparable to A Sober Way Home, the largest rehabilitation organization in Prescott.

The above prices are two-years old and may have increased. I also lack prices for the second largest rehabilitation provider Carleton Recovery Centers – First Step Drug and Alcohol Rehab so my working assumption is that their prices are comparable to the largest Prescott provider, A Sober Way Home.

Overview of rehabilitation organization in Prescott

I searched the Internet to find information that each organization had provided. Some was found on their websites and some at the website www.treatmentcentersdirectory.com. Information on organization structure including who owns and controls these facilities is from the Arizona Corporation Commission’s website. The following summary recaps for these organizations are divided into three categories: For Profit, Non Profit and Government.

Information from the Arizona Corporation Commission

The information on corporate organization and who controls the entity was extracted without editing from the Arizona Corporation Commission website. This is a matter of public record. However, I ran into the “who’s on First, what’s on Second issue” with regard to LLC names. As an example, the City of Prescott listing of recovery facilities has Round Table Recovery, LLC at 445 Miller Valley Road while other references list Oasis Addiction Counseling at that location. I am not sure what that means other than there seems to be plenty of Arizona LLCs operating in the addiction recovery arena.

For Profit Rehabilitation Organizations

A Sober Way Home

195 Plaza Drive (former Mining Company Restaurant)

This organization is the largest recovery organization in Prescott measured by the number of locations. It has twenty (20) locations listed in the City of Prescott list of recovery homes. The former Mining Company Restaurant at 195 Plaza Drive is now one of their facilities (picture above). Adjacent to that location they have another facility at 1379 West Gurley (pictured below).

1579 West Gurley A Sober Way Home Administrative Offices

This organization received a change in use permit from the City of Prescott to use the former Mining Company Restaurant as one of their facilities. In the future they expect to construct three two-bedroom fourplexes on that property that will serve as dormitories for their clients. They also plan to build a laundry room onto the 195 Plaza Drive building. The following information was found on the Internet and indicates how rapidly this organization has expanded.

“A Sober Way Home locations are all near historic downtown and include our primary treatment facility in addition to five transitional homes: two for women, and three for men.”

“At A Sober Way Home we provide both men and women with safe, effective, and intensive therapeutic addiction treatment programs in a family style residential setting that prepares them to remain drug and alcohol free while embracing the benefit of a lifelong 12-Step commitment. We also offer drug and alcohol recovery rehabilitation that targets the special needs of the Young Adult (18-26).”

Sandra Jo Tillman appears to be the sole shareholder in this corporation.

Sandra Jo Tillman, 4525 W Murphys Station, Prescott, AZ 86305

Carleton Recovery Centers – First Step Drug and Alcohol Rehab

637 Hillside Carleton Recovery Center

This organization is the second largest recovery organization in Prescott measured by the number of locations. They have fourteen (14) locations listed in the City of Prescott list of recovery homes. In addition to their fourteen (14) current locations they will have a new one at 1118 Willow Creek Road (corner or 12th Place and Willow Creek). It is currently being remodeled for Carleton and will have a total of thirty-one (31) beds when completed.

“Recovery Center is a warm, inviting place with a home like feel in scenic Prescott, Arizona.”
Phone: 1-877-263-3518

Clean Adventures in Sober Living

“Addiction Treatment for men. Transitional living with Intensive Outpatient program.”

“Clean Adventures is a structured transitional living program that provides individualized and group therapy by a licensed, master’s-level therapist. Our twelve step based program is for adult men who are willing to go beyond the traditional thirty day treatment program, making a long-term commitment to achieving success in early recovery.”

This organization has seven (7) locations listed in the City of Prescott list of recovery homes.

New Freedom House

“New Freedom operates two houses built on a large wooded property near the heart of downtown Prescott. It is only a ten minute walk to recovery meetings, grocery shopping and the Prescott downtown center. Prescott has a strong core of over 100 recovery meetings and it is one of the best recovery locations in the Southwest.”

This organization has four (4) locations listed in the City of Prescott list of recovery homes.

Footprints

“The purpose of Footprints is to help women recover from alcohol and drug addiction in an affordable, structured, loving way. Our Women’s substance abuse recovery home offers structured sober living along with access to group and individual therapy at a local IOP facility. Footprints main focus is on 12-step recovery programs, outings, conventions, and most importantly, a new life.”

This organization has three (3) locations listed in the City of Prescott list of recovery homes.

High Standards Recovery

This organization has one (1) location listed in the City of Prescott list of recovery homes.

655 Glendale Avenue, Prescott, AZ (928) 710-2840

Organized As

Name

Member

Arizona Domestic L.L.C.

HIGH STANDARDS RECOVERY L.L.C.

BRYAN S HULLIHEN JR MEMBER 213 S MT VERNON AVE PRESCOTT,AZ 86303

Gallus Detox Centers

This organization has one (1) location – it is not listed in the City of Prescott list of recovery homes.

“Mission

To deliver unsurpassed care for those in need of alcohol or drug detoxification in a safe, state-of-the-art, compassionate environment. We will constantly adapt to every patient’s need and give them a foundation of hope to improve their lives through positive change.

Description

By safely and comfortably managing drug and alcohol detox withdrawal symptoms, Gallus Detox Centers helps more patients detox successfully. Customized treatment includes IV therapy and monitoring by board-certified doctors and nurses 24/7. Upscale private rooms, gourmet meals, Wifi, HDTV, massage. Personal attention is assured through a maximum of only 6 patients at one time. Patient confidentiality is of utmost importance.
Formerly known as Arizona Executive Detox with one detox center in Prescott, Arizona, Gallus Detox has expanded into Texas with a new facility in Sugar Land near Houston.”

After a person addicted to drugs or alcohol undergoes detox, the next major phase of their treatment is in-depth, holistic counseling. Many physical and psychological dependencies come with addiction, along with external influences and spiritual issues that can put their sobriety at risk. Extended care drug and alcohol treatment is for people who are new to recovery or have had difficulty remaining clean and sober after participating in other short-term programs.

At Recovery in the Pines, we offer six-month and 1-year plus residential, extended-care programs for men who are ready to make a positive change for a healthy lifestyle. We take a holistic approach to treating them with services that help to heal the physical, psychological, and spiritual traumas associated with a history of substance abuse.”

Hoov’s House

“Hoov’s House is located in beautiful Prescott Arizona. This is home where we teach how to get and stay sober by blending three different areas of one’s life. We emphasize in spirituality, basic life skills and service work to better round out a solid foundation for sobriety. The program is called; The Ninety: A 90-day recovery Challenge. We use a well rounded lifestyle to help the individual recover from alcoholism and drug addiction. We are here to help so if you are in need of an intimate recovery then you might be up for our challenge.”

“My name is Alan Hoover and my friends call me “Hoov”. I have lived in the Prescott area for about twenty years and I have been an active member in the recovery community for twelve years. As a homeowner for the past decade, I have had the pleasure of renting rooms to many young men as they learn to get and stay sober. As a benefit, they continue to tell me that the skills they learned while living with us at Hoov’s House have proven to be immeasurable.”

Organized As

Name

Member

Arizona Domestic L.L.C.

HOOV’S HOUSE, LLC

ALAN BRADLEY HOOVER MEMBER 2517 NOLTE DR PRESCOTT,AZ 86301

Reflections Recovery Center

Not in Prescott list

“Reflections Recovery Center is a strustured program that shows the suffering addict first hand what it was like, what happen, and what its like today with our video journals. What we do is the first of any thats shows the addicts behavior, apperence, social, verbal, spiritual, and emotional change from the first day they enter our program until the day they graduate.”

“Canyon Crossing Recovery, LLC is a structured Transitional Living Facility with an Intensive Outpatient Program for Women located in Prescott, AZ. Prescott has a very large recovery community and is also known as everyone’s “hometown”. ”

The Bridges Network

“The Bridges Network Home is located in Prescott, Arizona: Prescott is the Largest Recovery Community on the West Coast. Prescott is home to over 100 Twelve Step meetings a week. Surrounded by a top recovery community, clients experience a new positive way of living in a historic mountain town.”

“We provide men and women effective addiction treatment in family-sized residential settings. Transitional living is as an essential component of our treatment program in early recovery. Adjusting to life sober is a process we take great care in. We offer gender specific structured sober living facilities to ensure safe environments for our clients participating in our Treatment Program.”

The MONTANA Society in Prescott, Arizona is one of the most effective and affordable treatment programs available. We are a licensed outpatient clinic. And we offer high quality, effective and affordable outpatient drug addiction treatment and drug rehab to both men and women.”

Catholic Charities Community Services/ Yavapai

Organized As

Name

Officer

Director

Non-profit Arizona Corporation

CATHOLIC CHARITIES COMMUNITY SERVICES, INC.

Many

Many

Chapter 5

“Chapter 5 is a 501(c)3, non-profit, residential environment dedicated to providing men and women with the tools, structure, and support needed in their successful recovery from alcoholism and drug addiction.”

This organization has one (1) location listed in the City of Prescott list of recovery homes, but see below.

Conclusion

This is the second part of the series. I suspect this will be an ongoing story as more details unfold and other recovery homes are pinpointed. That will only happen with the eyes and ears of the public. If you see a recovery/group home not on the list I published let me know what the address is (and the organization it is affiliated with if you know that). Now we can wait for the 60 day dateline (November 18, 2013) to see which of these facilities registers with the City of Prescott.

At a Special Meeting of the Prescott City council on Thursday, September 19 the council passed new regulations for group homes in Prescott. The ordinance was passed with the Emergency Clause meaning it was effective immediately on passage. This ordinance has a provision that requires an application from new group homes. I suspect the general public was left with the notion that we finally had some control over where new group homes would be located.

Under the wire

Courtesy of Billy Alexander via stock.xchng

Unfortunately there is a new group home that is being constructed as this is written and the new rules will not require an application for it. The building at 1118 Willow Creek Road is undergoing a major renovation to convert it into a group home. Here is an email response I received from Tom Guice of the City of Prescott on September 24:

“They were vested under the old code with the building permit. Otherwise the 1200′ buffer would apply to any Community Residences (CR’s) located within residential zoned properties. You are correct, the buffer requirement does not apply between CR’s that area both located in commercial zones.”

I then followed-up with Tom to find out how this group home would be configured, specifically how many beds would be there. Here is his response:

“I reviewed the occupancy plan a few minutes ago. There’s a total of 13 sleeping rooms on first and second floors, with 16 beds on the first and 15 beds on the second.”

Hypothetical Cash Flow Estimate

“Money, Money, Money” by Tracy Olson via stock.xchng

If you start with 31 beds in this new group home and deduct one for a house manager that leaves 30 for recovery patients. This new facility is being renovated for Carleton Recovery Centers. It will be their fifteenth (15th) location. I reviewed the renovation plans and the finished building will have fire sprinklers (required by the change in occupancy), parking on Willow Creek will be prohibited and landscaping will be installed.

Since Carleton Recovery Centers does not publish their prices where the public can see them, I used the $30,000- for ninety days that A Sober Home changes as a starting point – my assumption is they both offer similar services. Assuming a charge of $10,000- per month for intensive inpatient services, that works out to a gross income of $300,000- per month (30 times $10,000-). Assuming that expenses (rent, salaries, supplies, etc.) are fifty percent of that we have a net income of $150,000- per month from this one facility. This is a hypothetical cash flow proforma and as such may or may not reflect the real numbers at Carleton Recovery Centers. Of course if my assumptions are off base a Carleton representative can provide the real numbers via a comment.

Temptations

This facility with its 31 beds is within two-blocks of several stores that sell alcoholic products – Safeway, Walgreens and Wal-Mart

Conclusion

Hope you enjoyed this addendum to the first part that focused on the number of existing addiction recovery facilities in Prescott. Again, I do not claim this list is fully complete so if you know of a recovery home not listed, please let me know about it (street address and recovery organization it is affiliated with).

In the second part I will be focusing on the addiction recovery organizations that operate in Prescott including their organizational structure and who controls them.

This small “Recovery City” has emerged as an unlikely mecca for sober folk, many of whom relocate here thanks to rich resources including dozens of sober-living facilities, halfway houses and detox centers — most of which have sprung up in the last two decades. That’s a lot of recovery for a city of just 40,000 people; the Prescott Daily Courier estimates that 1,200 are in active treatment here on any given day — one resident in 30. For locals who may be perturbed at the influx of addicts seeking recovery, the burgeoning industry does its best to raise community awareness of recovery — and when it stimulates the economy and offers jobs to locals, what’s not to like? Prescott’s addicts and the recovery workers who support them “have made a commitment to sobriety,” says Tim Davis of the West Yavapai Guidance Clinic. “Isn’t that what we [as a society] want, for people to help themselves and get better?”

Addiction Recovery: A unlikely growth industry

When I started investigating the issue of the number of group homes in Prescott I thought this would be a simple bit of spade work to find some answers. The more I dug the more I found out. The amount of information grew and this article had to be split into two parts. The first part is an overview of the evolution of addiction recovery and group homes in Prescott from almost nothing to the large concentration we see today. It also contains a list of known group homes and/or recovery facilities with zoning and ownership information.

Part two focused on the organizations providing addiction recovery services. It delves into the number of facilities they have, their organizational structure and who controls them.

All of that information is a matter of public record, but assembling it all required lots of work with online resources at the Yavapai County and State of Arizona levels. In this first segment of the story I delve into the existing addiction recovery facilities of all types. It would amaze me if I have actually identified all the addiction recovery facilities in the City of Prescott. If you are aware of a recovery home not on the list in this article I would appreciate knowing about it, including the street address and whom it is associated with.

The origins of addiction recovery centers in Prescott

The first privately operated residential recovery business, Prescott House, was opened in 1988 by John Valentine.[1] Twenty five years later the myriad of recovery facilities of all sorts is well over one-hundred strong. The attributes that proved so attractive to retirees in Prescott are also attractive to those trying to recover from an addiction – the high desert climate, small town ambiance and the friendly population.

Follow the money

Courtesy of Dani Simmonds via stock.xchng

At the Prescott City Council study session on September 17, 2013 one of the women speaking to the council related how she had a son in one of these homes and he paid $800.00 a month rent for a bunk bed in a home with at least five others where no food was provided. She also stated these homes take in between $4,000.00 and $7,000.00 per month. The actual cost of addiction recovery in a residential setting is very expensive. I would venture my opinion that most of the residents of Prescott could not afford the going rates these organizations charge. That means these addiction recovery centers cater to clients that can afford their rates and that most of those clients are not from Prescott.

In the Mark Duncan article “RECOVERY CITY: The industry: How big is it” published on June 6, 2011 he cites these prices:

Prescott House: $6,850 per month

Pia’s Place: $5,900 per month

A Sober Way Home: $30,000 for the first 90 days

Clean Adventures in Sober Living: $4,500 per month

Chapter 5: Sober living: $600 per month (Note: this seems VERY low compared to the other numbers here)

First Step Recovery: $3,600 per month

To me that is a very healthy cash flow and it got me to thinking:

Who is profiting from these recovery homes (the follow the money question)?

How can I find that out?

Are they paying the two-percent City of Prescott rental tax?

City of Prescott list of Recovery Homes

The City of Prescott has identified the following Recovery Homes in Prescott (list obtained Sept. 16, 2013). Because Prescott does not require a business license there is no way to ensure this is a complete list. I added a column for zoning as this determines if the recovery home needs a conditional use permit or not under the new city ordinance.

How many recovery homes are there in Prescott?

Two years ago, in June 2011, Mark Duncan, City Editor of the Prescott Daily Courier published a six-part series called Recovery City (see Bibliography). In that series Mark Duncan provides an anecdotal estimate of 30 sober living homes in Prescott. Good investigative reporting does not rely on anecdotal information; it goes to the source to get verifiable data. So that is exactly what I did. Starting with the City of Prescott’s list of recovery homes I then added recovery homes I was able to locate using Internet searches.

Recovery Homes – Property Ownership

Then I began researching ownership using the Yavapai County website and property records. The property records proved several key pieces of information:

Ownership information (names and addresses)

Improvements of the parcel

Property tax classification

From that research I constructed a table of the recovery homes that included which recovery organization was using them, who the owners were, the property tax classification and the number of structures on the parcel (that ranged from single family homes to triplexes and fourplexes and even a motel). In most cases (but not all) the recovery homes are being rented by the recovery organization. In some cases the property tax classification (under the 2014 Legal Class column) is obviously wrong. Having a classification of Single Family Residence – Primary Residence (SFR-PR) when you are renting the property to someone else is a ploy used to avoid paying City of Prescott Transaction Privilege Tax (Rental Tax). To accurately compute the number of recovery homes you need to count the triplexes as three and the fourplexes as four.

Conclusion

This first part focused on the number of existing addiction recovery facilities in Prescott. Again, I do not claim this list is fully complete so if you know of a recovery home not listed, please let me know about it (street address and recovery organization it is affiliated with).

In the second part I will be focusing on the addiction recovery organizations that operate in Prescott including their organizational structure and who controls them.

Bibliography

Mark Duncan, City Editor of the Prescott Daily Courier, published a series of six article on the recovery industry in Prescott. Links to those articles are shown below: